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Ally Tow
Ally Tow,
Did deceased have testamentary capacity and/or know and approve the contents of her Will?
09 February 2016

In Burns & Gramauskas V Burns [2016] the appellant appealed the Court’s decision upholding the validity of a will on the basis that the deceased had the requisite testamentary capacity and further knew and approved the contents of the will.

Background facts

Mrs Eva Burns (“the deceased”) died on 21/5/10. She was survived by her two sons, Anthony and Colin.

By a deed of transfer dated 5/1/82 the deceased and her husband, (“Mr Burns”) had transferred one half of their interest in 4 Heather Grove, Ashton-in-Makerfield (“the Property”) to Colin in consideration of payment by him of £100,000.00. In 1988 Mr Burns died leaving all his interest in the Property to the deceased.

On 21/11/02 the deceased executed a power of attorney in favour of Alan who at the time was living with her at the Property and had done since shortly after his father’s death. In 2003, following an argument with Colin, Alan left the Property. Despite this, both brothers continued to have a strong and loving relationship with their mother.

On 8/5/03 the deceased made a will (“the 2003 Will”) leaving all her interest in the property (which now amounted to half following her husband’s death) to Alan.

By September 2003, when the deceased was 83 years old and had been diagnosed with dementia, her health had deteriorated to such an extent as to require the assistance of social services in the form of home help & other services including attendance at a day care centre.

Towards the end of November 2004 the deceased took steps towards the making of a new will. She attended at the offices of the solicitors who had prepared both the power of attorney and the 2003 Will in order to retrieve certain documents and she then arranged to write to a new solicitor, a Mr Walton setting out instructions to revoke the power of attorney and to make a new will.

In December 2004 Mr Walton sent a draft version of the new will to the deceased. By way of response, she confirmed in writing that the draft met with her approval and indicated it would be the New Year before she could come in to sign the same.

In the end, it was not until 26/7/05 that the deceased executed her new will (“the 2005 Will”). By this will she left her interest in the property to be divided equally between the two sons. Alan sought to challenge the validity of this will on the basis that his mother lacked the requisite testamentary capacity at the date of its purported execution and further on the basis that she did not “know and approve” of the contents of the same. As a result Colin issued proceedings seeking pronouncement in solemn form of the 2005 Will. Alan sought to defend those proceedings and counterclaimed seeking pronouncement in solemn form of the 2003 Will.

The initial proceedings

At the initial trial of the action, the judge heard evidence from Mr Walton that the 2005 Will had been executed at his offices in the presence of him and his receptionist. Mr Walton confirmed that although Colin had brought the deceased to his offices he was not present when the contents of the will were discussed with her nor when it was signed. He further confirmed that he had read the contents of the will over to the deceased and that she had understood the contents and agreed to sign it.

There was also brief and uncontroversial medical evidence before the court from Dr G Phillips FRCP, an independent consultant geriatrician as to certain general opinions on the nature of dementia and the interpretation of certain health assessments carried out on the deceased during her lifetime. Dr Phillips’ opinion was that the results of the assessments showed that the deceased was poorly orientated as to where she was in time and place, had poor short term memory and problems with analysis and simple task planning. He further stated that he considered the deficits identified had persisted for a period of three months. His views were supported in the main by Ms Ralph, a senior employee at the day care centre the deceased had attended since March 2004.

The judge was referred to a number of decided cases on the basic “make up” of testamentary capacity. He quoted the principles in these terms:

… the Testator must:

(a) Understand that he is giving his property to one or more objects of his regard;

(b) Understand and recollect the extent of his property;

(c) Understand the nature and extent of the claims upon him, both of those whom he is including in his will and those whom he is excluding from his will;

(d) Ensure that no insane delusion shall influence his will in disposing of his property and bring about a disposal of it, which, if the mind had been sound, would not have been made.

The Judge found that the objective evidence in late 2004 showed the deceased could still determine crucial parts of her life – she did not want to go into a home but agreed to various assessments and to attend the centre. On this basis, the judge found she was still “essentially independent of mind on those issues important to her and I find thus”.

On this basis, the judge found he was satisfied that this was the deceased’s position in November/December 2004 and that the documents sent at that time were written in her hand and with her knowledge and approval and that she understood what she was asking Mr Walton to do.

The judge went on to state that insofar as he needed to deal with July 2005 it was clear that by that stage, objectively, the deceased was no worse in medical terms than she was in February and May 2005 (when she had undertaken assessments). Overall, he was satisfied that, objectively, the deceased knew that the document she was signing in July 2005 was the will she had requested in the latter part of 2004 and that she had the requisite testamentary capacity and also knew and approved the contents of the will.

In the circumstances, the judge dismissed Alan’s counterclaim and found in favour of Colin allowing the 2005 Will to be entered into probate.

The appeal

Alan appealed the decision. Unfortunately, Alan died on 19/10/15. However, on 19/11/15 his children, Steven and Laura were appointed to represent his estate for the purposes of the appeal.

In essence, the grounds of the appeal were as follows:

  1. The judge had failed to have proper regard as to the burden of proof of validity of the 2005 Will which, it was said, was on Colin as the propounding party.

  2. The judge had failed to give due weight to the medical evidence before him as regards the deceased’s memory and ability to carry out simple tasks/give instructions.

  3. The judge was wrong to assess the adequacy of the precautions taken by Mr Walton to verify the capacity of the deceased and the knowledge and approval of the 2005 Will as being sufficient.

The Court of Appeal’s decision

In giving the leading judgment, LJ McCombe found that the judge had clearly decided the case primarily upon the basis that capacity had been established in 2004 when the instructions to prepare the will were given and the draft will approved, he was entitled to rely upon the rule in Parker V Felgate (itself further approved in the case of Perrins V Holland) as regards the validity of the 2005 Will.

In Perrins V Hollands [2011] the court found “… a will which had been drawn up in accordance with instructions given by a testator at a time when he had full testamentary capacity but executed at a time when he no longer had such capacity would nevertheless be valid provided that the testator knew that the document he was signing conformed with the instructions he had given to the draftsman and approved it by executing it in those terms …”.

LJ McCombe indicated that he shared the appellant’s concerns as to the failure of the judge to articulate the considerations arising from the various health assessments and Dr Phillips’ interpretation of them. However, it was clear that the judge had these matters well in mind as he expressly referred to them in his judgment. Accordingly, LJ McCombe did not consider this sufficient to merit overturning the judgment.

As to the question of knowledge and approval, the Court of Appeal stated that the circumstances surrounding the execution of the new will were such as to call for affirmative proof of the deceased’s knowledge and approval of the same. However, LJ McCombe did not consider it necessary for the judge to adopt a “two stage approach” of identifying “suspicion” and then the burden of proof of dispelling it, that burden resting on Colin as propounder of the new will. Instead, LJ McCombe considered the judge was entitled to proceed directly to whether the deceased did know and approve the contents of the will. Having regard to Mr Walton’s evidence, the judge had found that the deceased did know and approve the contents of the 2005 Will and again, LJ McCombe did not consider that he was wrong in so doing.

As a result, the Court of Appeal dismissed the appeal.


Although in this case the court found that the testator did have testamentary capacity as well as knowledge and approval of the will, it serves as a useful reminder to ensure that all reasonable steps are undertaken when taking instructions for a new will from an elderly client. In this case, the solicitor preparing the will had not heard of, let alone exercised, “the golden rule” set out in Banks V Goodfellow [1870] (essentially that in appropriate cases a doctor’s advice be sought on the question of testamentary capacity and, if appropriate, the will being witnessed by a doctor) and had not taken or kept any detailed attendance note of his meeting with the deceased, basic steps which should always be considered.

For more information about this case or to find out more about how the Probate Disputes team can help you please contact Ally Tow on 0118 952 7206 or email [email protected].

Consistent with our policy when giving comment and advice on a non-specific basis, we cannot assume legal responsibility for the accuracy of any particular statement. In the case of specific problems we recommend that professional advice be sought.

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